Franklin Fire Ins. Co. of Philadelphia v. Franks

• Decision Date: 31 January 1927
• Docket Number: 26233
• Court: Mississippi Supreme Court
• Parties: FRANKLIN FIRE INS. CO. OF PHILADELPHIA, PA., v. FRANKS. [*]

111 So. 135

145 Miss. 494

FRANKLIN FIRE INS. CO. OF PHILADELPHIA, PA., v. FRANKS. ^[*]

No. 26233

Supreme Court of Mississippi

January 31, 1927

Division B

. (Division B.)

1 INSURANCE. Insurer held estopped, where insured relied on oral unperformed agreement of insurer's agent, with authority to indorse policy to cover goods at new location.

Though by provision of fire policy, agreement that it should cover insured goods at any new location to which they might be moved was required to be indorsed on policy, insurer was estopped to claim policy did not cover them at new location, where its agent, with authority to act in the premises, agreed to make the indorsement, and insured acted and relied on such agreement, which was not kept.

2. EQUITY. No departure arises from amendment setting up state of facts different from bill, if character of relief sought remains same.

Though amendment sets up a state of facts different from and inconsistent with facts averred in original bill, there is no departure, so long as they are not inconsistent with its purpose, and the relief sought remains the same.

HON. ALLEN Cox, Chancellor.

APPEAL from chancery court of Prentiss county, HON. ALLEN COX, Chancellor.

Suit by J. M. Franks against the Franklin Fire Insurance Company of Philadelphia, Pa. From a decree overruling demurrer to bill, defendant appeals. Affirmed and remanded.

Affirmed and remanded.

R. L. McLaurin and E. C. Sharp, for appellant.

Inasmuch as the policy itself provides a form of removal permit to be filled out and signed by the agent, and the policy provides that no officer, agent or other representative of the company shall have power to waive any provisions or conditions of the policy except such as are written upon or attached to said policy, this action cannot be maintained. Appellee had notice when he accepted the policy of all conditions therein. Bostick v. Mutual Life Ins. Co., 67 L. R. A. 705; Mamlock v. Fairbanks, 46 Wis. 415, 32 Am. Rep. 716, 1 N.W. 167; Warner v. Benhamin, 89 Wis. 290, 62 N.W. 179; Farr v. Peterson, 91 Wis. 182, 64 N.W. 863.

Had the appellee in the present case given a most casual examination to the policy as endorsed or other provisions thereof, he would have seen that it in no wise complied with the requirements of the policy and that the transfer was a nullity. See, also, Okes v. Fire Ins. Co., 12 Pa. Co. Ct. 341; Walker v. State Ins. Co., 46 Kan. 312, 26 P. 718.

The fourth ground of demurrer is that, "The cause of action stated in the bill of complaint shows a complete departure from the cause of action which was transferred from the circuit court."

At common law the court had no power to allow the plaintiff to amend by introducing an entirely new and different cause of action. In those states where there are code provisions relating to amendments the common-law rule is generally adhered to. 1 Ency. of Pl. and Pr. 547; Miller v. Northern Bank of Miss., 34 Miss. 412; Gildhart v. Howell, 1 How. 198.

To sustain this ground of demurrer, see Fiser v. Miss. & Tenn. R. R. Co., 32 Miss. 359; Vanzant & Wife v. Shelton, 40 Miss. 332; Porterfield v. Butler, 47 Miss. 165; 21 R. C. L. 456; Parker v. Board of Supv. of Grenada County, 125 Miss. 617, 88 So. 172; Griffith's Miss. Ch. Pr., section 389; Brooks v. Spann, 63 Miss. 198.

In support of this ground of demurrer, see Watson v. Owen, 107 So. 865; Progressive Bank of Summit v. McGehee, 107 So. 876; Jones v. Jones, 41 So. 373, 88 Miss. 784; Life Ins. Co. v. Bouldin, 100 Miss. 660; New York Life Ins. Co. v. Odom, 56 So. 379; Home Mut. Life Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739.

It is also contended by appellant that the bill does not charge with sufficient accuracy that the endorsements on the back of the policy were made by an agent authorized to bind the company or that they were made prior to the fire. Neither do they show that the person making said endorsements understood the alleged agreement as set out in the bill.

The right to reform a written instrument exists in favor of the parties to such instrument when it clearly appears that a mutual mistake has been made whereby the instrument does not express the will and intent of the parties to it; but a unilateral mistake is not ground for reformation. 34 Cyc. 915; Griffith v. Watkins, 279 S.W. 489; Union Trust Co. v. Boardman, 213 N.Y.S. 277, 215 A.D. 73.

A reversal and dismissal of this cause is warranted.

Cunningham & Berry, for appellee.

To refute the position of appellant that the bill now pending in chancery is at fatal variance with the pleadings in the court of law, we cite Hardie et al. v. Bulger et al., 6 So. at 186; Belzoni Oil Co. et al. v. Y. & M. V. R. R. Co., et. al., 47 So. at 468; Delta Pine Lumber Co. v. Adams, Rev. Agt., 48 So. at 190.

Counsel for appellant endeavor to make a strong point out of their proposition that this oral agreement could not be entered into to make a proper transfer of this insurance policy to cover the transferred stock of goods in the new location in such a way as to bind the company. There is nothing at all in this contention considered in the light of Hartford Fire Ins. Co. v. J. R. Buckwalter Lbr. Co., 77 So. 798.

We stand on the proposition that the bill in chancery makes substantially the same case that the amended declaration in law made and, in fact, that the original bill in law made.

The court having taken jurisdiction of the matter in equity for one purpose will certainly hear and consider the appellee's bill in equity for full relief. Lafayette Co. v. Hall, 70 Miss. at 678; Hall v. Lafayette Co., 69 Miss. 529.

The chancellor's action in overruling the demurrer should be sustained.

OPINION

ANDERSON, J.

Appellee brought his bill in the chancery court of Prentiss county against appellant on a fire insurance policy, issued by the latter to the former, to recover the sum of two thousand dollars, a fire loss, suffered by appellee, of his stock of goods, wares, and merchandise, alleged to have been covered by said policy. Appellant interposed a demurrer to the bill, which was overruled by the court, and an appeal was granted appellant from that decree to settle the principles of the cause.

The following is deemed a sufficient statement of the case made by the bill and exhibits thereto:

When the insurance policy involved was issued by appellant to appellee, the latter was engaged in the mercantile business in a one-story frame building situated in the northwest corner of the intersection of the Baldwyn, Booneville, and Wheeler public highways, one mile west of Wheeler, in Prentiss county. The policy of insurance was issued and went into effect on the 29th day of April, 1924, and was in effect when the fire occurred which caused the loss for which appellee sued. After the issuance of the policy of insurance, appellee moved the frame store building, in which his stock of goods was located and where he carried on his mercantile business, from the place where it was situated when the policy was issued, about three hundred feet south, and erected a brick store building on the old site. From that time until the fire, the frame building was used by appellee as a warehouse for goods not immediately needed in the conduct of his business in the new building. At the time of the fire there were goods of something like the value of three thousand dollars in the frame building. Appellee claimed fire damage to the stock therein, in the amount sued for, two thousand dollars. Appellant's defense, raised by its demurrer, in short, was that there was no liability on the insurance policy, because by its terms it only covered loss by fire of the goods in the frame building while it stood on the site where it was when the insurance policy was issued. The demurrer raised another and a minor question--that the court ought to have dismissed appellee's bill, because there was a complete departure therein from the case as originally set forth in appellee's pleading.

Appellee first brought his action in the circuit court of Prentiss county. After much pleading on both sides, the cause was transferred by the circuit court to the chancery court of that county. In the circuit court there was an original declaration and two or three amended declarations filed by appellee. In all of these declarations, appellee sought to recover on the insurance policy involved for the fire loss of his stock of goods in the frame building. That also constituted the gravamen of his bill in the chancery court. The bill prayed that the oral agreement to make the policy cover the stock of goods at its new location be specifically performed, and that appellee recover the amount of his loss under the policy. Among other provisions, the policy of insurance contained the following:

"Against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding two thousands dollars to the following described property while located and contained as described herein, and not elsewhere, to-wit: . . . Only while contained in the one-story frame building, with shingle roof, while occupied by assured as a general store, situated on the Northwest corner of the intersection of...